1. When evidence is offered in a criminal trial following the trial court's ruling on a motion
to suppress, the contemporaneous objection rule, found in K.S.A. 60-404, gives the trial
court the opportunity to revisit its prior ruling on the suppression motion before deciding
whether to admit the evidence at trial.

2. When the same judge who heard the testimony at a suppression hearing presides over the
bench trial and is aware of the circumstances under which the State obtained the evidence
and the defendant's objections to it, when the trial consists of a submission to the court of
stipulated facts and a transcript of the suppression hearing, and when no witnesses are
called or additional evidence presented, the contemporaneous objection rule does not
apply and the issue of the admissibility of the evidence is preserved for appeal.

3. At a suppression hearing the State has the burden to prove that the search and seizure,
which led to the discovery of the proffered evidence, were lawful.

4. In reviewing the district court's ruling on a suppression motion, the appellate court
reviews the district court's ultimate legal conclusion de novo.

5. A seizure of a person implicating the Fourth Amendment to the United States
Constitution and § 15 of the Kansas Constitution Bill of Rights occurs if a police officer
applies physical force or exhibits a show of authority which, in view of all the
circumstances, would communicate to a reasonable person that he or she was not free to
leave, and the person submits to that show of authority.

6. In order to avoid Fourth Amendment constraints, a suspect's disclosure of the contents of
his or her pockets before a pat-down search must have been made voluntarily and without
duress or coercion, and not simply in response to a police officer's show of authority.

7. A pat-down frisk for weapons authorized by K.S.A. 22-2402 is not the same as a search
inside a suspect's pockets. The initial frisk permitted under K.S.A. 22-2402 is limited to a
pat-down search of the suspect's outer clothing to determine the existence of concealed
objects which might be used as weapons. A police officer may not reach directly into a
suspect's pockets or outer clothing without first having conducted a pat-down search. The
exclusionary rule must be applied to any evidence removed from the pockets of a suspect
prior to a pat-down search.

8. Generally, issues not raised before the trial court cannot be raised on appeal. However, an
exception applies when a newly asserted legal theory involves only a question of law
arising on proved or admitted facts and is finally determinative of the issue.

9. When the court imposes a fine, K.S.A. 21-4607(3) requires the sentencing court to make
specific findings and to take into consideration a defendant's financial resources and the
financial burden a fine would impose.

Appeal from Butler District Court; JOHN E. SANDERS, judge. Opinion filed February 2,
2007. Affirmed
in part, reversed in part, vacated in part, and remanded with directions.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

James R. Watts, assistant county attorney, and Phill Kline,
attorney general, for appellee.

Before McANANY, P.J., PIERRON, J., and BUKATY, S.J.

McANANY, J.: Kevin W. Bastian appeals the district court's denial of his suppression
motion which led to his convictions for possession of methamphetamine and possession of drug
paraphernalia.

The charges against Bastian arise from an incident in the early morning hours of
September 2, 2003. Dallas Wedel, who was house-sitting for the owners of a ranch in Butler
County, called the sheriff's department to report an unknown man who had parked a pickup truck
under the deck of the house. The man was in the driver's seat slumped over the wheel. The
engine was off but the lights of the vehicle were on. Officer Brandon Stewart of the Butler
County Sheriff's Department and Deputy Chief Todd Ball of the Rose Hill Police Department
responded to the call. Ball arrived first and waited for Stewart's arrival. When Stewart arrived
and approached the vehicle, he saw the driver, Bastian, slumped over and "messing around in his
feet area." As a precaution Stewart drew his weapon since he could not see Bastian's hands and
did not know what Bastian was doing in the floorboard area. Stewart ordered Bastian out of the
car and turned him over to Ball. Stewart then saw a syringe and an unspent cartridge designed for
use in an automatic pistol. The syringe and cartridge were located in plain view on the center
console of the pickup.

The presence of the syringe led Stewart to believe that Bastian was either a diabetic or a
narcotics user. He did not know which. The presence of the cartridge suggested that a gun might
be nearby. Therefore, Stewart searched the pickup for a weapon and any illegal drugs while Ball
secured Bastian and patted him down for a weapon. A weapon which could use the kind of
cartridge Stewart found would be rather bulky. Neither Ball nor Stewart found any weapon. The
search of the pickup did not produce any drugs.

When Stewart questioned Bastian about why he was on the property, it appeared that
Bastian was under the influence of alcohol or drugs. Bastian was jittery and had a hard time
standing without support. He said he had become tired while driving and had decided to pull over
and get some sleep. Bastian thought he was in Utah.

Stewart told Bastian he would have to submit to field sobriety testing. Before doing so,
Stewart directed Bastian to empty his pockets. This was Stewart's regular practice before patting
down a suspect. Bastian removed several small bags from his pocket which were later
determined to contain methamphetamine.

Bastian was charged with possession of methamphetamine and possession of drug
paraphernalia. The evidence to support the possession of methamphetamine charge came from
the search of Bastian's person after he was removed from the pickup. The evidence to support the
possession of drug paraphernalia charge came from the syringe which was in plain view when
Bastian got out of the pickup. Bastian moved to suppress the evidence obtained from the search
of his vehicle and his person. Following a hearing, the district court denied the motion.

The case ultimately was tried to the court on stipulated facts. Bastian was found guilty on
both counts. The court imposed a $500 fine and a 20 months' prison sentence, granted Bastian 12
months' probation, and ordered 12 months of postrelease supervision for the possession of
methamphetamine conviction. The court imposed a $300 fine and a concurrent sentence of 6
months in jail for the possession of drug paraphernalia conviction. The court also ordered Bastian
to pay $400 in restitution to the KBI for lab fees, to reimburse BIDS for his court-appointed
counsel, to pay the costs of the action, and to pay a probation fee. Bastian now appeals. He
argues that the district court erred in not suppressing the evidence against him and in ordering
him to pay fines and the BIDS fee.

Preservation of Issue for Review

The State first argues that since Bastian did not renew at trial his objection to the
evidence obtained at the scene, he failed to preserve this issue for appeal. The contemporaneous
objection rule is found in K.S.A. 60-404. In the context of this case, the purpose of the rule is to
give the trial court the opportunity to revisit its prior ruling on the suppression motion before
introduction of the evidence at trial. The rule has no application here.

The same judge who heard the testimony at the suppression hearing presided over the
bench trial. The judge was aware of the circumstances under which the State obtained the
evidence and the defendant's objections to it. The trial consisted of a submission to the court of
stipulated facts, along with a transcript of the suppression hearing and the videotape of the arrest
introduced at the suppression hearing. There was no trial in the traditional sense. No witnesses
were called. No additional evidence was presented. There was no point during the proceedings
when Bastian's counsel had the opportunity to rise and announce, "We object!" No arguments of
counsel were heard beyond those memorialized in the transcript of the suppression hearing.
Bastian's objections to the evidence were clearly expressed at the suppression hearing. In
announcing its ruling, the court specifically referred to having considered the parties' stipulation
and the transcript of the suppression hearing. The court concluded: "I reread the transcript again
last night and the Court has concluded that the defendant is guilty beyond a reasonable doubt."
Bastian has preserved the issue for appeal.

The Detention of Bastian

At the suppression hearing the State had the burden to prove that the search and seizure
were lawful. See State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). In
reviewing the
district court's denial of Bastian's suppression motion, we review the district court's ultimate legal
conclusion de novo. See State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).

The Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights protect against unreasonable searches and seizures of persons. As
stated in State v. Morris, 276 Kan. 11, Syl. ¶ 5, 72 P.3d 570 (2003):

"A seizure of a person occurs if there is the application of physical force or if
there is a
show of authority which, in view of all the circumstances surrounding the incident, would
communicate to a reasonable person that he or she is not free to leave and the person submits to
the show of authority."

It is clear that Stewart's seizure of Bastian occurred when Stewart approached Bastian's
pickup
with his weapon drawn and ordered Bastian out of the pickup, and Bastian complied. The issue is
whether Stewart had reasonable suspicion to detain Bastian at that point. In ruling on the
suppression motion, the district court found that Stewart saw the syringe and the cartridge before
ordering Bastian out of the pickup. In fact, Stewart testified that he saw these items only after
ordering Bastian out of the pickup. Thus, while we normally defer to the trial court on issues of
fact, we do not do so here because there was no substantial evidence to support this finding. See
Ackward, 281 Kan. at 8. Since Bastian was detained when he complied with
Stewart's order that
he get out of the car, the presence of the syringe and cartridge do not provide reasonable
suspicion for that initial detention.

The State asserts, however, that Stewart had reasonable suspicion to detain Bastian even
before Stewart saw the syringe and the cartridge in the pickup. This assertion is well founded. In
the middle of the night, Wedel discovered an unknown person parked in a pickup truck under the
deck of the home he was caring for in rural Butler County. This was of sufficient concern for
Wedel to call the sheriff's department. While Bastian points out that Wedel's concern was for his
welfare, since Bastian was slumped over the wheel of the pickup, the fact of the matter is that
Wedel called law enforcement, not an ambulance or the local rescue unit. While it is also correct
that Wedel did not report that Bastian had threatened him, Wedel was concerned about Bastian's
presence on private property and did not know if Bastian had permission to be there. And while
Wedel did not report that Bastian had engaged in any criminal activity, Stewart had reasonable
suspicion to detain Bastian based upon the belief that he was a trespasser or was about to commit
a crime. Considering the totality of the circumstances, Stewart had reasonable suspicion to justify
directing Bastian to get out of the pickup. See State v. Burks, 15 Kan. App. 2d 87,
89-90, 803
P.2d 587 (1990), rev. denied 248 Kan. 997 (1991). Once Stewart observed the
unspent cartridge
used as ammunition in an automatic pistol and Bastian's apparent intoxicated condition, he had
grounds to inquire further and search the vehicle. Stewart's search of the vehicle yielded the
syringe, which was in plain view.

It is important to note that Bastian does not challenge the sufficiency of the evidence to
support his conviction for possession of drug paraphernalia. Rather, he challenges the district
court's refusal to suppress the use of the syringe as evidence. The syringe was obtained in the
search of the pickup. Since the search of the pickup was legal, Bastian's conviction for possession
of drug paraphernalia stands. On the other hand, if the court erred in admitting into evidence the
methamphetamine taken from Bastian's person, his conviction for possession of
methamphetamine must be reversed. Therefore, we must now examine the search of Bastian's
person.

The Search of Bastian's Pockets

Having ordered Bastian out of his pickup truck, Stewart directed Bastian to empty his
pockets. This led to the discovery of contraband. The State seeks to justify this search under two
theories: first, it was not a search at all but rather a voluntary disclosure by Bastian following
Stewart's request; and second, since Stewart could have lawfully searched Bastian's pockets
himself, asking Bastian to empty his own pockets was not improper. Upon examination, both of
the State's arguments fail.

The State relies on State v. Bieker, 35 Kan. App. 2d 427, 132 P.3d 478
(2006), in
contending that Bastian's disclosure of the contents of his pockets was voluntary. Since the facts
relating to this portion of Stewart's investigation are not disputed, we may resolve the issue as a
question of law. See State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004). In
Bieker, the
officer requested a pat-down search of Bieker for weapons, and Bieker responded by emptying
his pockets and revealing drugs. The officer had not drawn or displayed his weapon. The officer
was dressed in ordinary street clothes but had shown Bieker his badge. There was no inference
that the officer threatened Bieker or behaved in an intimidating manner. The court found that
there was no evidence that the production of the items in Bieker's pocket was other than the
result of Bieker's willingness to comply with the investigator's request.

The facts in Bieker stand in stark contrast to those now before us. Here,
Bastian was
ordered out of his vehicle at gunpoint in the middle of the night by two uniformed officers and
detained by one while the other searched his pickup. While Stewart characterized Bastian's
response as voluntary, Stewart testified that if Bastian had refused to empty his pockets, Stewart
would have emptied them himself. In order to avoid Fourth Amendment constraints, Bastian's
disclosure of the contents of his pockets, an analogue for a search by Stewart, must have been
made voluntarily and without duress or coercion. See State v. Dwyer, 28 Kan. App.
2d 238, Syl.
¶ 3, 14 P.3d 1186 (2000), rev. denied 270 Kan. 900 (2001). Under these
circumstances, a
reasonable person would not feel free to ignore Stewart's "request." Bastian's disclosure of the
contents of his pockets was not a voluntary act, but an inevitable response to Stewart's show of
authority.

With respect to the State's second argument, that Stewart was justified in searching
Bastian's pockets himself but instead requested that Bastian empty his own pockets, the State
contends that Stewart's request was justified because Stewart believed Bastian might be carrying
a weapon.

When Stewart saw the unspent cartridge in the pickup, he had a reasonable suspicion that
Bastian was armed. During an investigative detention, if an officer reasonably suspects that
personal safety requires it, the officer may frisk the seized person for firearms or other dangerous
weapons. K.S.A. 22-2402(2). However, Bastian had already been patted down by Ball, "a
capable and competent officer," when Bastian first got out of the pickup.

Further, the pat-down frisk for weapons authorized by K.S.A. 22-2402 is not the same as
a search inside a suspect's pockets. As stated in State v. Waddell, 14 Kan. App. 2d
129, Syl. ¶ 3,
784 P.2d 381 (1989):

"The initial frisk permitted under Terry and K.S.A. 22-2402 is limited
to a 'patdown'
search of the suspect's outer clothing to determine the existence of concealed objects which
might
be used as weapons. An officer may not reach directly into a suspect's pockets or outer clothing
without first having conducted a patdown search, and the exclusionary rule must be applied to
any
evidence removed from the pockets of a suspect prior to a patdown search."

When Stewart directed Bastian to empty his pockets in anticipation of a second pat-down
search, Stewart violated Bastian's Fourth Amendment rights. He had no probable cause to search
Bastian's person beyond a pat-down frisk to search for weapons.

Since all the evidence used to convict Bastian on the charge of possession of
methamphetamine was obtained through this illegal search, the conviction on this charge must be
reversed.

The Imposition of a Fine and Restitution

Bastian next argues that the district court erred in imposing fines against him because it
failed to comply with the Kansas Sentencing Guidelines Act by not making any specific findings
that a fine was warranted and by not taking Bastian's financial resources into consideration. The
State concedes that the district court failed to make the required findings. However, the State
argues that Bastian failed to preserve this issue for appeal because he did not object at the time
the fines were imposed.

Generally, issues not raised below cannot be raised on appeal. State v. Rojas,
280 Kan.
931, 932, 127 P.3d 247 (2006). However, an exception applies when a newly asserted legal
theory involves only a question of law arising on proved or admitted facts and is finally
determinative of the issue. State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237
(2005). This
exception applies here. Thus, we will consider the issue, but only those fines and fees related to
the possession of drug paraphernalia conviction which has been affirmed.

K.S.A. 21-4607(3) required the court to make specific findings and to take into
consideration Bastian's financial resources and the financial burden a fine would impose at the
time it imposed fines against him. See State v. Edwards, 27 Kan. App. 2d 754, Syl.
¶ 7, 9 P.3d
568 (2000). The court imposed a $300 fine for the possession of drug paraphernalia conviction.
The court did not make the requisite findings to support the $300 fine. Thus, this fine imposed on
Bastian is vacated and the case is remanded for compliance with Edwards with
respect to the
imposition of a fine.

Assessment of the BIDS Fee

Bastian argues, and the State concedes, that the district court erred in failing to consider
Bastian's financial resources at the time it assessed the BIDS fees against him, as required by
State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934 (2006). However, the
State argues that
Bastian did not preserve the issue for appeal. Once again, the issue is one of law arising on
proved or admitted facts and is finally determinative of the issue. See Schroeder, 279
Kan. at
116. Consequently, we can consider it.

The parties are well familiar with the ruling in Robinson which was
announced after the
district court sentenced Bastian. We must vacate the order for BIDS fees and remand the case to
the district court for it to consider these financial impact issues discussed in
Robinson. Further,
the district court should take into account the effect, if any, of Bastian's conviction on only the
possession of drug paraphernalia charge, since the possession of methamphetamine conviction
has been reversed.

Affirmed in part; reversed in part; orders regarding one fine and reimbursement of BIDS
fees vacated; and case remanded for further proceedings consistent with this opinion.